13‐4152‐cr
United States v. Valentino Anderson
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2014
No. 13‐4152‐cr
UNITED STATES OF AMERICA
Appellant,
v.
VALENTINO ANDERSON,
Appellee‐Defendant
________
Appeal from the United States District Court
for the District of Vermont.
No. 13 CR 24 ― Christina Reiss, Chief Judge.
________
ARGUED: OCTOBER 1, 2014
DECIDED: NOVEMBER 24, 2014
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No. 13‐4152‐cr
Before: PARKER, LYNCH and CARNEY, Circuit Judges.
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Appeal from an order of the United States District Court for
the District of Vermont (Reiss, Chief Judge), suppressing physical
evidence seized from defendant Valentino Anderson’s wife, Crystal
Anderson. The district court held that admitting against Anderson
in his narcotics trafficking prosecution cocaine base that his wife
recovered from a body cavity and surrendered to the state police as
a result of unconstitutional coercive tactics would violate
Anderson’s right to substantive due process. Accordingly, the court
suppressed the evidence. Because Anderson cannot suppress
evidence that was seized through an illegal search directed at
another person, we reverse.
CRAIG S. NOLAN, (Gregory L. Waples on the brief),
for Tristram J. Coffin, United States Attorney,
District of Vermont, Burlington, VT, for Appellant
RICHARD C. BOTHFELD, Bothfeld & Volk P.C.,
Burlington, VT, for Appellee‐Defendant
________
BARRINGTON D. PARKER, CIRCUIT JUDGE:
The Government appeals from an order of the United States
District Court for the District of Vermont (Reiss, C.J.) suppressing,
on substantive due process grounds, drugs that had been secreted
within the vagina of Crystal Anderson, the wife of defendant
Valentino Anderson, and that she surrendered to Vermont state
police officers after a lengthy custodial interrogation during which
she was the subject of unconstitutional, coercive conduct. The
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No. 13‐4152‐cr
District Court held that, because the conduct of the Vermont state
troopers vis‐à‐vis Mrs. Anderson was sufficiently outrageous, the
drugs could not be admitted into evidence at Valentino Anderson’s
trial. The Government does not contest on appeal that the conduct
of the Vermont state troopers violated Mrs. Anderson’s substantive
due process rights, but contends that Anderson cannot assert such a
claim based on conduct directed solely at his wife. For the reasons
that follow, we agree and we reverse.
BACKGROUND
Evidence adduced during the suppression proceedings
established the following. On October 30, 2012, the Vermont state
police conducted a traffic stop of a vehicle that defendant Valentino
Anderson was driving with his wife, Crystal Anderson, and another
passenger named Kenneth Clark. The ostensible basis for the stop
was that the vehicle’s front headlights were not illuminated in
violation of Vermont state law. Earlier that evening, Senior Trooper
Michael Studin had received a call from a Massachusetts state
trooper informing him that a suspicious vehicle was traveling north
on Interstate 91. The Massachusetts state trooper described the
vehicle for Studin and told him that the registered owner
(Anderson) had numerous prior arrests, including ones for drugs
and firearms. Studin then contacted Senior Trooper Max Trenosky
to tell him that there was “a potential drug load coming up
Interstate 91,” and Trenosky stationed himself on Interstate 91 near
the Vermont/Massachusetts border. United States v. Anderson, No.
5:13 Cr. 24, 2013 WL 5769976, at *2 (D.Vt. Oct. 24, 2013).
Approximately forty‐five minutes later, Studin located the
vehicle traveling north on Interstate 91, through Brattleboro,
Vermont, and observed the vehicle exit the highway and pull into a
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No. 13‐4152‐cr
gas station. When the vehicle subsequently left the gas station,
Studin stopped the vehicle. Trenosky arrived at the scene shortly
thereafter.
When questioned, the three occupants offered differing
accounts of their movements and of the purpose of their trip.
Anderson was required to leave the vehicle and, according to
Studin, consented to be searched. Studin questioned Anderson, who
eventually told Studin that he and his wife had used drugs in the
past and that she had “problems with heroin and crack cocaine.”
Anderson, 2013 WL 5769976, at *2.
Meanwhile, Trenosky interrogated and searched Clark and
Mrs. Anderson, and Studin then sought and obtained Anderson’s
consent to search the vehicle. Trenosky found drug paraphernalia in
Mrs. Anderson’s handbag and drug residue in a bag in the pocket of
Anderson’s jacket. Studin placed Mrs. Anderson in handcuffs,
telling her that “she was being detained for investigatory purposes,”
and asked her to sit in the front passenger seat of Trenosky’s vehicle.
Anderson, 2013 WL 5769976, at *3. Another Vermont state police
trooper then arrived at the scene with a search dog. During an
exterior search of Anderson’s vehicle, the dog alerted to the presence
of drugs and after a search of the front passenger seat where Mrs.
Anderson had been sitting, the dog again alerted to the presence of
narcotics. Based on the reaction of the dog, the troopers apparently
believed that Mrs. Anderson may have secreted drugs on her
person.
Anderson and Clark were subsequently released, but the
troopers detained Mrs. Anderson. The troopers did not tell her that
she had been placed under arrest. They did, however, tell her that
she was being taken to the state police barracks and that they
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No. 13‐4152‐cr
intended to apply for a warrant for a body cavity search. Mrs.
Anderson informed the troopers that she knew her rights and that
the officers had no grounds for obtaining such a warrant. At the
barracks, Mrs. Anderson was handcuffed to a chair in the processing
room while Studin contacted the state’s attorney and applied for a
warrant for a body cavity search. The state court judge denied the
application. Both Studin and Trenosky were informed that their
application had been denied, but they and the other troopers
undertook to conceal this fact from Mrs. Anderson.
At some point, Studin and Trenosky were joined by a female
officer, Aubrey Crowley. After Mrs. Anderson had been handcuffed
to the chair for approximately three hours, Crowley approached her,
asked if she needed water and told her, referring to the warrant,
“just so you know, he’s going to go see the judge right now and get
that all signed off, alright?” Anderson, 2013 WL 5769976, at *4. The
district court concluded that, prior to this conversation, Crowley
presumably had learned that the warrant application had been
denied and so her statement to Mrs. Anderson was false.
Another thirty minutes later, after Mrs. Anderson had been
handcuffed to the chair for three and a half hours, Crowley returned
to give her water and said, “[S]o we’re going to be headed over to
the hospital, okay?” Anderson, 2013 WL 5769976, at *4. After viewing
the police videos of the processing room, the district court described
Mrs. Anderson as appearing “disheveled, groggy and
uncommunicative, hanging her head or turning away as Officer
Crowley attempted to engage her in conversation. “ Id. Crowley
asked Mrs. Anderson if she wanted to share her story with Crowley
specifically because Crowley was also “a girl” and because the other
troopers could be “a little brusque” and “hard to talk to.” Id. Mrs.
Anderson again requested to see the warrant and indicated that she
might talk if she saw a warrant. Mrs. Anderson asked Crowley why
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No. 13‐4152‐cr
she would not show her the warrant if the police officers were about
to take her to the hospital where she would be forcibly searched.
Crowley did not tell her the warrant had been denied.
After approximately four hours of detention, Crowley took
Mrs. Anderson to a conference room in the barracks where Mrs.
Anderson told Crowley: “[L]ike I said, you show me the warrant [or]
there’s no point” and again Crowley did not mention that the
application had been denied. Anderson, 2013 WL 5769976, at *5.
Some time later, in the early morning of October 31, Trenosky came
to join Crowley and Mrs. Anderson and (as he recounted) he “made
small talk by bringing up the fact that her husband had a poor
relationship with her as he threw her ‘under the bus’ roadside” and
“that it speaks volumes about his character, how he left her and
went back to Rutland.” Id. Trenosky also told Mrs. Anderson that
he was “disappointed” with her and that her relationship with her
husband “must not be that good if he was willing to let her take
responsibility for trafficking his drugs.” Id.
Crowley brought the unsigned search warrant application into
the room and Mrs. Anderson asked why the warrant had not been
signed by the judge. She again said that if she saw a signed copy she
might agree to speak with the officers. None of the officers told her
that the judge had refused to sign the warrant and Trenosky
“reiterated how poorly her husband treated her.” Anderson, 2013
WL 5769976, at *5. At that point, Mrs. Anderson began to cry and
said that she was not willing to risk a lengthy period of incarceration
to protect her husband. Then, Trenosky finally read Mrs. Anderson
her Miranda warnings and asked if she would speak with him. She
signed a waiver form at 4:22 a.m. on the morning of October 31,
some six hours after she had been arrested.
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No. 13‐4152‐cr
Mrs. Anderson was then escorted back to the processing room
and interviewed for another two hours by Trenosky and another
unidentified police officer. She admitted that the drugs were
concealed in her vagina. Trenosky told her that the “easiest way to
do this” would be for her to remove the drugs in the presence of the
female officer. Anderson, 2013 WL 5769976, at *5. He also told her
that “with the body warrant, it’s very difficult for us to actually get it
signed a lot of times, so a lot of times we ask for voluntary consent,”
but he still did not tell her that the warrant had been denied. Id. at
*5 n 4. Crowley then accompanied Mrs. Anderson to the bathroom
where Mrs. Anderson recovered the drugs from a condom in her
vagina and gave them to Crowley.
At this point, Trenosky told Mrs. Anderson, for the first time,
that the state judge had denied their application for a search
warrant. Trenosky then shared with Mrs. Anderson his modus
operandi. He told her (as recorded in a videotape of Mrs.
Anderson’s detainment) that, as police officers: “[W]e don’t
necessarily have to tell you the truth one hundred percent of the
time – Cuz that’s our angle in law enforcement, ya know, I can, I can
lie to you all day long, um and it’s more of just I just want to make it
clear that you don’t feel coerced today, you don’t feel like we did
anything inappropriate or wrong.” See ECF Dkt Entry No. 29 at 6
(citing Exhibit E at 0:20:27).
The Andersons were subsequently indicted on drug
possession and conspiracy charges. After her indictment, Mrs.
Anderson moved to suppress her post‐arrest statements and the
drugs from her vaginal cavity. She argued primarily that the police
misconduct that led her to surrender the secreted drugs constituted
an involuntary body cavity search and thus violated the Fourth
Amendment, and that she had been arrested without probable
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No. 13‐4152‐cr
cause. Subsequently, she withdrew her motion, entered a plea of
guilty and was sentenced to time served.
Anderson joined his wife’s suppression motion and further
argued that using the drug evidence against him would violate his
right under the Fifth Amendment to substantive due process
because the evidence was obtained through a “bad faith search” and
as a consequence of police conduct that “shock[ed] the conscience.”
ECF Dkt. Entry No. 30.
The district court granted the motion.1 See Anderson, 2013 WL
5769976. The court concluded that Anderson had standing to
challenge the admissibility of the drugs obtained from his wife and
that admitting the evidence would violate Anderson’s substantive
due process rights, because the evidence was obtained by law
enforcement “conduct that shocks the conscience.” See Rochin v.
California, 342 U.S. 165, 172 (1952). The district court also found that
the statements that Mrs. Anderson had made to the Vermont state
troopers were involuntary and had been secured as a consequence of
an array of constitutional violations.
Specifically, the district court found that Mrs. Anderson had
been subjected to prolonged custodial interrogation without the
benefit of Miranda warnings. Her statements were tainted by
coercive police conduct, which included misrepresentations that her
husband had incriminated her in drug trafficking and that she
would be transported to a hospital where the drugs would be
forcibly extracted from her body if she did not remove them herself.
The district court also concluded that the police misconduct was
1
As no testimony was taken at the suppression proceedings, the district court’s findings
of fact were derived from the affidavit of Trooper Studin and the Investigation Narrative
of Trooper Trenosky, as well as three videotapes depicting portions of Mrs. Anderson’s
detention at the Vermont state police’s Brattleboro barracks.
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No. 13‐4152‐cr
exacerbated by the lack of any exigency. Unlike her husband, who
was not detained, Mrs. Anderson was not a known drug trafficker
and the misconduct took place over a number of hours in the police
barracks. These circumstances as well as what the court termed the
“egregious” flouting of a judicial finding that no probable cause
existed to search or continue to detain Mrs. Anderson—all
amounted, the court found, to outrageous police conduct that
violated due process. Anderson, 2013 WL 5769976, at *12.
Accordingly, the district court held that, the drug evidence obtained
from Mrs. Anderson was “inadmissible for any purpose.” Id.
On appeal, the Government does not contest that the conduct
of the Vermont state police violated Mrs. Anderson’s substantive
due process rights.2 But the Government contends that under United
States v. Payner, 447 U.S. 727, 735‐37 n.9 (1980), Anderson cannot
base a substantive due process claim on what happened to his wife.
We agree and we reverse.3
DISCUSSION
The dispositive issue presented by this appeal is whether
Anderson may suppress on substantive due process grounds
evidence obtained as a consequence of an illegal search of his wife
rather than himself. It is well settled that he may not do so based on
the Fourth Amendment because “suppression of the product of a
Fourth Amendment violation can be successfully urged only by
those whose rights were violated by the search itself, not by those
2
“The United States does not challenge the district court’s holding that the police violated
Crystal Anderson’s substantive due process rights, and it is not using the evidence
obtained from Crystal Anderson to prosecute her.” Gov’t App. Br. at 3.
3
When reviewing a motion to suppress evidence, “we review the district court’s factual
findings for clear error and its conclusions of law de novo.” United States v. Awadallah, 349
F.3d 42, 71 (2d Cir. 2003) (quotation marks omitted).
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No. 13‐4152‐cr
who are aggrieved solely by the introduction of damaging
evidence.” Alderman v. United States, 394 U.S. 165, 171‐72 (1969).
“Coconspirators and codefendants have been accorded no special
standing.” Id. at 172. The district court recognized as much but
granted Anderson’s suppression motion based on a conclusion that
the police misconduct was sufficiently egregious that the admission
of evidence obtained through such conduct at trial would violate
Anderson’s rights to substantive due process.
A defendant can raise a substantive due process claim if
outrageous government conduct was directed at him. See United
States v. Salerno, 481 U.S. 739, 746 (1987); see also Rochin, 342 U.S. at
169. But Payner bars such a claim when it is based on a “flagrantly
illegal search” of the defendant’s wife. 447 U.S. at 729. In Payner, the
defendant objected to the introduction of documents obtained
illegally from the briefcase of a third party bank officer. Like
Anderson, he raised a substantive due process claim. The evidence
had been stolen by an informant who, working with an Internal
Revenue Service agent, broke into the bank officer’s apartment and
stole his briefcase, which contained records that the government
needed to build its case. 447 U.S. at 729. The IRS agent then
supervised the copying of approximately 400 documents taken from
the briefcase, while a “lookout” observed the bank officer at dinner.
When the bank officer left the restaurant, the lookout notified the
informant and the briefcase was replaced. Id. at 730. The documents
recovered from the briefcase ultimately led to the discovery of
important incriminating evidence.
The lower court had held that the defendant did not have
standing to assert that the theft of the briefcase and the subsequent
illegal search violated the Fourth Amendment, but, under the
inherent supervisory power of federal courts and the due process
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No. 13‐4152‐cr
clause, the illegally‐seized evidence was not admissible. United
States v. Payner, 434 F. Supp. 113, 129, 133‐135 (N.D. Ohio 1977).
Ultimately, the Supreme Court reversed. It agreed that the
defendant did not have standing to invoke the Fourth Amendment’s
exclusionary rule, but went on to conclude that he also could not
assert a substantive due process claim when his own property had
not been subject to the illegal search. The Court stated:
even if we assume that the unlawful . . . search
was so outrageous as to offend fundamental
‘canons of decency and fairness,’ the fact remains
that ‘[t]he limitations of the Due Process Clause
. . . come into play only when the Government
activity in question violates some protected right
of the defendant.’
Payner, 447 U.S. at 737 n. 9 (quoting Hampton v. United
States, 425 U.S. 484, 490 (1976) (plurality opinion)
(internal citations omitted)).
Accordingly, on the facts before us, Payner precludes
suppression, on substantive due process grounds, of physical
evidence obtained through a flagrantly illegal search directed at
someone other than the defendant. This is so notwithstanding the
fact that the conduct of the Vermont state police was deceptive,
coercive and illegal.
In holding that Payner precludes Anderson’s claim, we need
not decide whether physical evidence obtained through outrageous
conduct – such as torture – inflicted on a third party may never be
excluded on due process grounds. The Seventh Circuit has
explained that “a violation of another person’s [F]ifth [A]mendment
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No. 13‐4152‐cr
rights may rise to the level of a violation of [a defendant’s] rights to a
fair trial. Due Process is implicated when the government seeks a
conviction through use of evidence obtained by extreme coercion or
torture.” United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984)
(internal citation omitted). Significantly, neither Payner nor this case
involved conduct, such as torture, so beyond the pale of civilized
society that no court could countenance it.
This holding is in line with our sister circuits that have
considered this issue. See, e.g., United States v. Dyke, 718 F.3d 1282,
1285, 1288 (10th Cir. 2013) (declining to “take sides” on the
continuing viability of the outrageous conduct defense in light of
Payner, but noting that since Payner, the Supreme Court has regularly
“reminded us . . . that we are not to reverse convictions simply to
punish bad behavior by governmental agents, but should do so only
when the bad behavior precipitates serious prejudice to some
recognized legal right of the particular defendant before us”); United
States v. Teague, 469 F.3d 205, 210 (1st Cir. 2006) (rejecting, under
Payner, defendant’s claim that the use of evidence recovered through
an illegal search of a third party’s vehicle violated his due process
rights); United States v. Noriega, 117 F.3d 1206, 1214 (11th Cir. 1997);
United States v. Valdovinos‐Valdovinos, 743 F.2d 1436, 1437‐38 (9th Cir.
1984) (per curiam) (“Hampton and Payner preclude defendants from
raising due process violations allegedly suffered by third parties [and
because] [a]ny due process violations in the instant controversy
involved the Fifth Amendment rights of the two illegal aliens,” the
defendant “lacked standing to challenge these alleged violations”);
see also United States v. Miceli, 774 F. Supp. 760, 770 (W.D.N.Y. 1991)
(following Payner and rejecting an outrageous misconduct defense
where a government investigator seduced the defendantʹs ex‐wife in
order to gather incriminating information about the defendant, but
noting that the “court would not hesitate to intervene if [the
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No. 13‐4152‐cr
investigator] had raped or otherwise abused [the ex‐wife] in a single‐
minded effort to collect evidence of crime against the defendant”).
Anderson also argues that the district court’s supervisory
power justifies its suppression of the unlawfully obtained evidence.
See, e.g., Elkins v. United States, 364 U.S. 206, 223 (1960). The district
court did not specifically rely on this power, but Anderson contends
that this Court may nonetheless consider this issue, which is closely
aligned with other issues he has argued and, in any event, is
grounded in the record. See International Ore & Fertilizer Corp. v. SGS
Control Servs. Inc., 38 F.3d 1279, 1286 (2d Cir. 1994) (“[A]ppellee may
seek to sustain a judgment on any grounds with support in the
record.”)
We address the issue but conclude that Payner also governs it.
After holding that the defendant could not prevail on substantive
due process grounds, the Supreme Court went on to “conclude that
the supervisory power does not authorize a federal court to suppress
otherwise admissible evidence on the ground that it was seized
unlawfully from a third party not before the court.” Payner, 447 U.S
at 735. The Supreme Court also noted that it “has never held . . . that
the supervisory power authorizes suppression of evidence obtained
from third parties in violation of Constitution, statute or rule. The
supervisory power merely permits federal courts to supervise the
administration of criminal justice among the parties before the bar.”
Id. at 735 n.7 (internal quotation marks and citation omitted). See
Noriega, 117 F.3d at 1214 (“[a] reasonable reading of Payner . . .
compels the conclusion that a court may not exercise its supervisory
power to dismiss an indictment if the government treated third
parties unconscionably, where, as here, such an approach would
circumvent the Supreme Court’s limiting construction of the Fifth
Amendment”).
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CONCLUSION
For the foregoing reasons, we REVERSE the October 24, 2013,
order of the District Court.
14
United States v. Valentino Anderson
Combined Opinion